Unemployment Basics. Purpose of the system Intended beneficiaries Administration by the DWD How the system is funded

Transcription

1 Unemployment Basics Purpose of the system Intended beneficiaries Administration by the DWD How the system is funded 1

2 Unemployment Basics Eligible claimants can qualify to receive: Up to 26 weeks After 2008, the maximum number of weeks went as high as 99 weeks, but all those extensions have expired over the past few years Employer tax rates vary based on the amount of benefits charged to an employer s account Very few employers pay into the system on a dollar-for-dollar basis Unemployment Basics Most employers are covered employers and are required to pay the unemployment insurance tax Businesses that employ at least one worker for 20 or more weeks or pay wages of $1,500 or more in the current or preceding year Non-profits that employ at least four workers for 20 weeks in the current or preceding year Employers of farm workers that employ at least 10 workers 2

3 Unemployment Basics Covered employees include people who: Are out of work through no fault of their own Are ready and able to work Are making an effort to secure full-time work Have earned sufficient wages to establish a valid claim for benefits Applicable Legal Standards Voluntarily quitting work for good, work-related reasons, such as: The employer arbitrarily or unreasonably changes the terms or conditions of the job Safety violations at the work site Harassment Domestic or family violence Moving to follow a spouse accepting a new job Military service 3

4 Applicable Legal Standards Further good reasons for voluntarily quitting: Accepting previously-secured permanent, full-time work with another employer that was an improvement over the current job Having a medically substantiated physical disability and becoming unemployed after making reasonable efforts to maintain employment Applicable Legal Standards Termination for just cause includes: Knowingly breaking a reasonable and uniformly enforced rule Giving false information on a job application Unexcused absence or tardiness (if no rule) Purposefully damaging the employer s property Refusing to obey instructions Reporting to work under the influence of drugs or alcohol 4

5 Applicable Legal Standards Termination for just cause also includes: Consuming drugs or alcohol on the job Conduct that threatens the safety of self or coworkers Incarceration in jail following a conviction for a misdemeanor or felony Any breach of duty in connection with work which is reasonably owed the employer (catch-all) Applicable Legal Standards Ineligible individuals include: On-call and as-needed workers if they receive pay OR refuse work during any week Workers employed at a business during a shortterm shutdown or vacation of definite length, whether unpaid or paid Workers who volunteer for a temporary layoff, reduction in hours, furlough, or leave, whether unpaid or paid 5

6 Applicable Legal Standards Ready and able to work: Does not have to be at the same type of job that the claimant was separated from Includes basic issues like having necessary transportation, being physically and mentally capable of doing some job Making an effort to secure full-time work: Must apply for at least 3 jobs per week and keep particular records of each application Applicable Legal Standards Fraud occurs when a claimant: Knowingly fails to report earnings during the waiting period or benefit period Hides or falsifies any fact that would make the claimant ineligible for benefits or reduce the benefit amount Fraud can be reported anonymously to the DWD at 6

7 Navigating Pre-hearing Procedures DWD send employer(s) notice that claim was filed ("Separating/Base Period Employer Notice") Employer obligation to submit "Unemployment Insurance Benefit Protest Form" Employer's chance to explain Presumption for employer Navigating Pre-hearing Procedure DWD mails determination to claimant and employer Tight time frame to appeal ( days from date of mailing listed on form) Failure to timely appeal renders the determination final Must send in Acknowledgement Sheet 7

8 Navigating Pre-Hearing Procedures Counsel? If so, counsel must file appearance Continuance of hearing Selection of witnesses and exhibits Labeling of exhibits Submission of exhibits to ALJ and opponent Subpoenas Navigating Pre-Hearing Procedures Proper request for a continuance: Must be submitted to the ALJ and the other party Must be received no later than 3 days before the date of the hearing or demonstrate an unforeseen emergency Must set forth good cause for granting the request 8

9 Navigating Pre-Hearing Procedures Proper submission of exhibits: Must be submitted to the ALJ and the other party Must be able to provide proof of mailing, which consists ONLY of a certified mailing label or a copy of the label from a private carrier If there is no proof of mailing and either the ALJ or the other party did not receive the exhibits, the hearing will proceed without the exhibits Navigating Pre-hearing procedures Was notice received? When DWD sent notice via regular mail, presumption arises that notice was received Difficult to rebut Value World v. Review Board Good cause (circumstance outside control) S.S. v. Review Board (2011) (time zone) Wolf Lake Pub v. Review Board (2010) (cell phone reception) But see Lush v. Review Board (2011) (union hall) 9

10 Preparing for the Appeal Hearing Telephone hearing Most hearings conducted this way Must submit phone number for ALJ to call Must gather all witnesses by the phone, or connect other lines during call Consider potential pitfalls Preparing for the Appeal Hearing Failure to Appear Appellant's failure to appear = ALJ will, in his/her discretion, dismiss the appeal Duration of hearing What if hearing starts late? 60 minutes late automatic right to continuance if requested 10

11 Preparing for the Appeal Hearing Get organized Gather witnesses to discuss the termination What exhibits exist that support the termination? Consider the witnesses who have first-hand knowledge of the circumstances that led to termination and rule or duty that the former employee violated Practice, practice, practice! Preparing for the Appeal Hearing Rule violation What rule was violated? Was employee aware? Consistent enforcement? Breach of duty/directive What duty was breached? Was employee aware? Why was it important to the company? Financial harm? 11

12 Preparing for the Appeal Hearing When the employee quits Still may get unemployment compensation if had good cause to quit Employer s defense Present evidence that employee never complained Present evidence that employer investigated complaint and took prompt and effective action Present evidence that requirements were reasonable Effective Participation in Appeal Hearing Administrative Proceeding: not a formal trial, but conducted in roughly the same manner Parties must present witnesses who have personal knowledge must avoid hearsay Parties can cross-examine their opponent s witnesses Parties may object to the other side's exhibits 12

13 Effective Participation in Appeal Hearing ALJ hears the matter de novo ALJ takes roll of parties and witnesses ALJ administers oath/affirmation to each witness Order of evidence? ALJ s preference Effective Participation in Appeal Hearing ALJ will ask one side to go first. Witnesses with knowledge testify regarding the circumstances leading to the termination Incorporate exhibits into testimony ALJ will ask the other side to go next. 13

14 Effective Participation in Appeal Hearing Use of exhibits Authentication Request admission into evidence Opportunity to object ALJ's obligation when claimant is pro se Closing statement permitted Effective Participation in Appeal Hearing At conclusion of hearing ALJ takes matter under advisement ALJ will issue a written opinion affirming, modifying, or reversing the claims deputy s determination 14

15 Appeal from ALJ's Decision The Review Board 15 days to appeal 7 days to file response No new evidence! Hearing Usually assembly of Board to review the record from the ALJ hearing Occasionally decides to conduct a hearing to assess witness credibility Appeal from ALJ's Decision Review Board's Decision Need not defer to the ALJ Will affirm, modify, or reverse ALJ's decision in a written opinion with conclusions of law supported by specific findings of fact May instead remand the matter to the ALJ to obtain additional evidence 15

16 Appeal from Review Board's Decision Appeal to the Indiana Court of Appeals The Indiana Rules of Appellate Procedure will apply Within 15 days of receipt of Review Board's decision, party wishing to appeal must file with the Review Board a Notice of Intent to File Appeal and request for compilation of the record Appeal from Review Board s Decision 30 days from date of filing Notice of Appeal to file the following with the Court of Appeals: Appellate brief Record Assignment of errors Optional: request for oral argument (Court of Appeals may grant or deny at its discretion) 16

17 Appeal from Review Board's Decision What will the Court of Appeals consider? Reviews record for errors of law and findings not supported by the evidence Deference to Review Board as to evidentiary findings Considers only evidence and inferences most favorable to Review Board's decision If substantial evidence supports the Board's decision, the Court of Appeals will affirm Appeal from Review Board's Decision Decision supported by the evidence? Would reasonable person be bound to reach a different conclusion on the evidence in the record? Decision contrary to law? Examine: Findings of fact sufficiently supported by the evidence? Are the findings of fact sufficient to sustain the Review Board's decision? Next step: appeal to the Indiana Supreme Court 17

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19 Strategies for Successful Handling of Unemployment Compensation Hearings and Appeals Ice Miller LLP 2016 Germaine Winnick Willett Attorney at Law ICE MILLER LLP One American Square, Suite 2900 Indianapolis, IN Nicholas Blesch Clark Attorney at Law Law Office of Nicholas B. Clark, LLC 301 E Carmel Drive, Suite E 300 Carmel, Indiana nickblesch@gmail.com This outline is intended for information only and should not be considered legal advice.

20 I. Applicable Legal Standards Governing Entitlement to Unemployment Compensation A. Unemployment Basics Indiana's unemployment insurance system is designed to minimize the economic insecurity associated with unemployment by providing temporary benefits to wage earners who become unemployed through no fault of their own. Ind. Code , et. seq. Unemployed individuals must apply for unemployment benefits through the Indiana Department of Workforce Development ( DWD ). If approved, they may be entitled to receive up to twenty-six (26) weeks of unemployment benefits during the fifty-two (52) weeks following their initial unemployment claim, with the amount of benefits being based on the amount of wages they earned prior to being unemployed. The minimum amount paid per week in Indiana is $50, while the maximum is currently $390. The precise amount of the benefit (i.e., "weekly benefit amount") that a claimant is eligible to receive depends on how much money he or she earned during his or her "base period." A claimant's base period is defined as the first four (4) quarters out of the last five (5) quarters prior to the quarter in which the claim for benefits was filed. The highest quarter of the claimant's base period determines his or her weekly benefit amount. The last (most recent or 5 th ) quarter is called a "lag quarter," and is not used in unemployment benefit calculations. The base period is computed as follows: Filing [Base Period ] Lag Quarter October January April July October November February May August November December March June September December January February March April May June July August September October November December January February March Quarter January February March April May June - 2 -

21 April May June July August September July August September October November December October November December January February March January February March April May June April May June July August September July August September October November December An eligible employee's benefits are paid out of unemployment tax accounts (i.e., "experience accounts") created by the claimant's base period employers. The base period employers' accounts are charged in inverse chronological order, with each employer being liable for only 28% of the wages it paid to the claimant during the base period. For example, if a claimant worked for three (3) employers during the base period, the claimant's benefits would be drawn from the most recent employer until the 28% threshold is reached, from the second most recent employer until the 28% threshold is reached, and then from the final employer. B. Basic Eligibility Requirements Nearly every employer in the State of Indiana is subject to the unemployment insurance statute. In fact, the statute applies to any business that employs at least one (1) worker for 20 or more weeks or pays wages of $1,500 or more in the current or preceding year, and non-profit employers who employ at least four (4) workers for 20 weeks in the current or preceding year. To be eligible to receive unemployment benefits, unemployed or partially unemployed individuals must also meet several requirements. The three most significant requirements for the claimant are the following: (1) the employee must have earned a certain amount of money during his or her base period; (2) the employee must be unemployed due to no fault of his or her own; and (3) the employee must be able, available and actively seeking full-time work. To establish a valid claim, a claimant must have total base period wages that are at least one and one-half (1.5) times greater than his or her highest quarter wages. A claimant must also - 3 -

22 have base period wages totaling at least $4,200, with $2,500 of those wages earned in the last six (6) months of the base period. As stated above, a claimant only qualifies for unemployment insurance benefits if he or she is unemployed through no fault of his or her own. This determination depends upon several factors, including whether the employee was voluntarily or involuntarily separated from employment. An employee who is involuntarily terminated from employment will be eligible for unemployment benefits unless the employer can show that the employee was discharged for just cause or for gross misconduct. An employer may be able to establish that an employee was terminated for "just cause" if he or she was terminated for one of the following reasons: Falsification of an employment application; Knowing violation of a reasonable and uniformly-enforced rule of an employer; Unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness; Purposely damaging the employer's property; Refusing to obey an employer's instructions; Reporting to work under the influence of alcohol or drugs; Consuming alcohol or drugs on the employer's premises during working hours; Conduct threatening the safety of self or co-workers; Conviction and imprisonment for a serious crime; or Any breach of duty in connection with work which is reasonably owed an employer by an employee. As of January 1, 2010, an employer can also establish that an employee was terminated for "gross misconduct" if it can prove, by a preponderance of the evidence, that the employee committed any of the following in connection with work: A felony (conviction not necessary); A Class A misdemeanor (conviction not necessary); Working, or reporting for work, in a state of intoxication caused by the individual's use of alcohol or a controlled substance; - 4 -

23 Battery on another individual while on the employer's property or during working hours; Theft or embezzlement; or Fraud Note, however, that conduct is not gross misconduct if an action or requirement of the employer may have caused it, or if it is lawful conduct not otherwise prohibited by the employer. In general, individuals who leave employment voluntarily will not be eligible for unemployment benefits. However, if a claimant quits work with good, work-related reasons (i.e., "good cause"), he or she may still be eligible for benefits. Good, work-related reasons include, but are not limited to: The employer arbitrarily or unreasonably changing the terms or conditions of employment; Safety violations at the employer's work site; or Harassment Individual claimants cannot establish "good cause" by citing personal or subjective reasons for quitting. For example, quitting a job because car trouble prevents a person from getting to work is not job-related and does not qualify as "good cause." Similarly, ordinary dissatisfaction with the duties or pay of a job does not rise to the level of "good cause," unless the work situation is objectively unreasonable. Additionally, a claimant who voluntarily quits his or her job may nonetheless be statutorily eligible for unemployment benefits. For example, an employee who becomes unemployed as a result of a medically substantiated disability, and who is involuntarily unemployed after making reasonable efforts to maintain the relationship with his or her employer, will not be disqualified from receiving unemployment benefits. Similarly, individuals who voluntarily leave employment due to circumstances directly caused by domestic or family violence may still be eligible to receive unemployment benefits. Other voluntarily-separating - 5 -

24 employees who may not be subject to disqualification include those who leave employment to accept recall to previous employment, to enter the armed forces of the United States, or to join a spouse who has moved to another labor market. Finally, even if a claimant has earned the requisite amount of money and been separated from employment due to no fault of his or her own, benefits could still be denied if he or she is not available for and able to accept another job. In fact, an otherwise eligible individual's benefits could be denied or reduced if he or she: Refuses a "suitable offer of work"; Fails to go to a job referral made by a local WorkOne Center; Cannot show proof that he or she is actively searching for work according to work search requirements; Is temporarily not available for work due to illness, injury, or leave of absence; or Is on suspension due to work-related misconduct. The law has recently been amended to provide that claimants must be actively seeking full-time work. Under the law's current work search requirements, a claimant must, at a minimum, submit one (1) application per week in which the individual is claiming benefits. However, if a claimant has been temporarily laid off and has a return to work date within sixty (60) days of filing his or her claim, he or she does not need to apply for one job per week. The unemployment statute provides that otherwise-eligible individuals may have their weekly benefit amount reduced for a number of reasons. In particular, if the claimant earns "deductible income," the amount of that income will be deducted from his or her benefit check. "Deductible income" includes: Dismissal pay; Vacation pay; Pay for idle time; Holiday pay; Sick pay; Certain kinds of travel expense reimbursements; - 6 -

25 Net earnings from self-employment; Back pay awards; Settlement payments; Pension, retirement, or annuity payments under plans where the employer contributes all or a portion of the money; and Unpaid child support obligations. In certain situations, DWD may require a claimant who has failed to disclose deductible income to pay a portion of his or her benefits back (as the claimant essentially received an overpayment of benefits). Unemployment compensation appeal hearings are administrative proceedings conducted by an administrative law judge, who has "power to regulate the course of the hearing and the conduct of the parties." Ind. Code (5). During the hearing, the administrative law judge hears testimony and reviews exhibits presented by the claimant and his or her former employer. Though the proceeding is non-judicial, according to the DWD's website, "the fundamental rules of evidence and procedure apply." However, the rules cannot be adhered to so strictly as to prevent a full presentation of the facts or otherwise jeopardize a party's rights. See Shoup v. Review Bd. of Indiana Employment Sec. Div., 399 N.E.2d 771 (Ind. Ct. App. 1980). Basically, this means that hearsay evidence that would not be admissible in a state court should not be considered during the hearing. Ind. Admin. Code, Title 646, (b). Still, hearsay may form the basis of the administrative law judge's decision if there is no objection to it. See Forster v. Review Bd. of Indiana Employment Sec. Div., 420 N.E.2d 1287 (Ind. Ct. App. 1981). Indiana Code establishes that an applicant s entitlement to unemployment benefits is determined based on the information that is available without regard to a burden of proof There is no equitable or common law allowance for or denial of unemployment benefits. Thus, there is no burden of proof on either party, and more discretion is committed to the administrative law judge to make a determination on a case-by-case basis

26 II. Navigating the Pre-hearing Procedural Requirements Once an individual submits an initial claim for benefits, DWD will contact his or her last employer and all of his or her base period employers to notify them via a form called a "Separating/Base Period Employer Notice" that their experience account is potentially chargeable due to the claimant s claim for unemployment compensation. Upon receipt of the notification, the employer is required to complete and submit the "Unemployment Insurance Benefit Protest Form" (which can be found on DWD s website) within 10 days of receipt of the notice. Completion of the form is the employer's opportunity to explain to the DWD claims deputy why the claimant is not eligible for unemployment compensation (that is, that the reason the claimant is no longer employed is that the claimant voluntarily quit or that he or she was discharged for just charge or gross misconduct). The form also seeks information from the employer about post-employment payments made to the claimant, such as pay the former employee has received following termination for unused vacation, retirement pay, or severance pay. DWD will limit the amount of unemployment compensation an eligible claimant will receive based on these post-termination payments. The employer may submit supporting documentation with the form. NOTE: An employer who does not plan to contest a former employee's claim for unemployment compensation benefits need not submit the protest form. The employer who does wish to protest a former employee's eligibility for benefits must submit the protest form or else be charged for partial benefits ("an amount equal to fifty percent (50%) of the benefits paid to the employee to which the employee was not entitled") in the event the employer ultimately succeeds in convincing the administrative law judge that the claimant is not eligible for benefits. If the information the employer submits does not match the information from the former employee, DWD shall refer the claim to the unemployment claims compliance center for - 8 -

27 investigation. Ind. Code (e). The investigator will then contact the employer to obtain additional information. Ind. Code (e). If the employer does not timely (within ten days) respond to the additional request for information, DWD will determine that the claimant is eligible for benefits. Ind. Code (f). If the employer timely responds and if the discrepancy between the former employee's information and the employer's information persists, DWD will determine that the claimant is ineligible for benefits. Ind. Code (f). Either side has the right to seek an appeal of the claims deputy's determination, but in order to exercise the right, he/she/it must signify the desire to appeal in a timely manner. See Cunningham v. Review Bd. of Indiana Dept. of Workforce Development, 913 N.E.2d 203 (Ind. Ct. App. 2009) (failure to timely file appeal of DWD's denial of benefits warranted dismissal of claimant's appeal). Both the claimant and the employer have ten days from the date the DWD mails the Determination of Eligibility form, plus three additional days where the notice is served via U.S. Mail, to appeal this determination by requesting a hearing before an administrative law judge. This time period is calculated using calendar days. See T.C. v. Review Bd. of Indiana Dept. of Workforce Development, 930 N.E.2d 29 (Ind. Ct. App. 2010). If no one requests such a hearing, the claims deputy's determination becomes final. Once a party has requested an appeal of the claims deputy's determination, the matter will be transferred to the Unemployment Insurance Appeals Division ("UI Appeals") and assigned to an administrative law judge. The administrative law judge will set the matter for hearing and send out a Notice of Hearing to both parties. NOTE: The Notice of Hearing should arrive a week or so before the hearing, but it is possible that it will arrive just a few days before the scheduled day of the hearing. As such, the employer should instruct mail - 9 -

28 room employees or the applicable assistant to watch for the Notice so that it is not overlooked. Neither side need retain counsel to participate in the appeal hearing. Should a party decide to obtain legal representation, the attorney is required to send a Notice of Appearance to the UI Appeals Division, and send a copy of the Notice to the other side, prior to the hearing. Once a hearing is set, a party who is unable to participate at the scheduled time may request a continuance of the hearing. Ind. Admin. Code, Title 646, A request for a continuance must be in writing and be submitted to the administrative law judge via mail, facsimile, or in-person delivery. The administrative law judge must receive the request for continuance at least three days before the hearing. The request for a continuance must explain the reason for the request, and must state therein that a copy of the request was sent to the other side. The request will be granted or denied at the discretion of the administrative law judge. Any exhibits which are to be introduced into the record at the hearing must be exchanged with all other parties as well as the Administrative Law Judge (or Review Board). Ind. Admin. Code, Title 646, (d). Exhibits must be mailed or otherwise delivered to the other parties and the Administrative Law Judge no later than four days prior to the hearing. Ind. Admin. Code, Title 646, (d)(2). If there is any question whether the Administrative Law Judge or another party has received the exhibits, the party wishing to admit the exhibits must be able to provide proof of mailing, which consists only of a copy of a certified mailing label or a copy of the label from a private carrier. Ind. Admin. Code, Title 646, (d)(2). If the party wishing to admit the exhibits can provide proof of mailing, the Administrative Law Judge has the discretion of continuing the hearing in order to allow all participants to obtain copies of the exhibits or of attempting to have any missing exhibits read into the record while affording the opposing party the opportunity to object to the admission of the exhibits. Ind

29 Admin. Code, Title 646, (e). If the party wishing to admit the exhibits cannot provide proof of mailing, the hearing will proceed as scheduled without the consideration of any missing exhibits. It is assumed that a document mailed to a party was received if the document was mailed to the complete, correct address of record in all but the most extraordinary circumstances. Ind. Admin. Code, Title 646, (d). Parties are expected to participate in a hearing in a timely manner. Although there may be certain circumstances outside a party s control which would result in a hearing being overturned because a party failed to participate, the most frequent issues, such as bad cell phone reception or confusion regarding time zones, are considered to be within a party s control and the Review Board will not order a new hearing in order to allow a party who suffered those issues to participate. III. Preparation for the UI Appeal Hearing Unemployment appeal hearings are nearly always conducted via telephone. Ind. Admin. Code, Title 646, NOTE: If desired, a party may request an in-person hearing rather than a telephone hearing. The procedure for requesting an in-person hearing is set forth in Ind. Admin. Code, Title 646, Prior to the hearing, the parties must provide the administrative law judge the telephone number where they can be reached at the time of the hearing. The employer will list the phone number on the participation form that it submits to the UI Appeals Division. The hearing instructions that accompany the Notice of Hearing usually state that a party has the option to call the Division 24 hours before the hearing to leave a message confirming the party s phone number. It is a good idea to place this call

30 If the phone number that the employer provides is the company s main line, the employer must instruct the company s receptionist to be ready at his or her post to take the call at the appointed time. Should the receptionist step away from the phone and the call goes to voice mail, the judge will simply leave a message. This will result in the call not getting through to the witnesses, and the judge will conduct the hearing without the employer s participation. If a party provides a cell phone number, it is that party s responsibility to ensure that the phone is sufficiently powered and able to pick up the signal. NOTE: If a hearing does not commence within 60 minutes of the scheduled time, either side may request a continuance of the hearing to another date, which request must be granted, unless the delay was caused by the person requesting the continuance (in which case, the continuance shall be discretionary with the administrative law judge). Ind. Code The hearing instructions provided with the Notice of Hearing state that all witnesses must be present at the phone the administrative law judge will call. This could be challenging if one of the employer s witnesses is working elsewhere on the day in question. If the employer has a telephone capable of connecting other lines to the call, then once the judge calls, the primary witness for the employer may inform the judge that he or she would like to connect other witnesses to the call. The primary witness should be well-practiced in completing the connection and take great care to not accidentally disconnect the connection with the judge. As stated above, both sides have the opportunity to present exhibits during the hearing. Remember that documents provided to DWD with the benefits protest form will NOT be in the possession of the administrative law judge. If the employer wishes to utilize the same documents in the hearing, it must fax another copy of them to the judge and mail them via certified or overnight mail to the former employee as directed by the hearing instructions (generally, at least four days prior to the hearing). In addition, the parties exhibits must be numbered according to

31 the hearing instructions. If exhibits are not timely submitted to the judge or have not been sent to the other side, the judge will likely decide not to consider them during the hearing, which will likely be very detrimental to the employer s case. Well in advance of the hearing, the employer must determine the witnesses it will need to support its position as well as to authenticate documents that the employer intends to submit as exhibits during the hearing (that is, to establish that each document was prepared for business purposes and is one of the company s regularly-maintained business records) they intend to present during the hearing. Witnesses must have personal knowledge of the facts about which they will testify. This basically means they must have seen, heard, or been otherwise personally involved in the facts about which they will testify. The employer must present as its witness the individual(s) who observed the employee s conduct that led to the termination and who made the decision to terminate. This is usually (but not always) the former employee s supervisor. The employer may also need its human resource representative to testify regarding the company s rules, policies, or procedures and consistent enforcement of the same. Prior to the hearing, the employer s lead witness (usually the human resources representative) should gather together with the supervisor or other manager who made the decision to terminate and, if applicable, a witness to the former employee s conduct, in order to practice for their participation in the hearing. During the meeting, these individuals should go over the specific rule, policy, or procedure that the former employee violated and consider why the rule is important to the company s business operations. See Ind. Admin. Code, Title 646, The witnesses must be prepared to testify to these facts, and also testify regarding how the company informed the former employee of the rule, policy, or procedure. For example, if the

32 rule that was violated is set forth in the employee handbook, the witnesses should present as exhibits both the specific section of the handbook and the former employee s signed acknowledgement of receipt of the handbook. The witnesses should also be ready to testify that the company warned employees that violation of the rule would subject them to discipline up to and including termination of employment (language typically set forth in the handbook). The witnesses must also be prepared to establish that the company uniformly enforces the work rule, so they should go over other instances in which the company terminated employees for violating the same rule. In the event that the former employee was the first person to violate the rule, it is sufficient to testify to that fact (though the former employee may try to claim otherwise). It may be the case that, instead of violating a workplace rule, the former employee was terminated for failing to perform his or her job duties. See Ind. Admin. Code, Title 646, (a). In such event, the witnesses should gather evidence to establish that the duty that they assert that the employee failed to perform was a duty reasonably owed to the employer. Typically, the position description associated with the former employee s job will be a good source of this evidence. The employer s witnesses should discuss as well the importance of that duty to the employee s overall purpose that is, why the employee s failure to perform the duty warranted termination. In addition, the witnesses must be able to articulate why the former employee should have realized that by failing to perform the duty, the employee risked termination of employment. The witnesses will need to share this information when they testify during the hearing. The former employee may have breached a duty owed to the employer in declining to comply with the employer s reasonable directive. In such case, the witnesses must consider what

33 evidence supports that the directive was, in fact, issued, that it was a reasonable order, and the employee was aware of it. If the directive was in writing, the witnesses can submit a copy of the communication as an exhibit. If the directive was verbal, the employer should have the supervisor testify that he or she gave the directive and have another witness testify that he or she was with the former employee when he or she heard the directive. The supervisor must also testify that the directive was a task reasonably related to the former employer s job and be ready to explain why it was important to the company s business. Breach of duty may also occur if the employee acted in a manner that harmed the company financially or otherwise adversely affected the company s interests. See Ind. Admin. Code, Title 646, 5-8-6(b)(3)-(7). In a case like this, the witnesses should consider what evidence exhibits and oral testimony they can present that pertains to the conduct by the employee and that reveals harm caused to the employer thereby. It is possible that an employee who has voluntarily quit his or her job will make a claim for unemployment. In such case, the former employee will argue that he or she is entitled to unemployment compensation because he or she had good cause to quit. When the former employee claims that he or she was being subjected to harassment or discrimination, or had been ordered to complete a task that was viewed as illegal, unsafe, immoral, or unethical, it is likely that the administrative law judge will rule in the former employee s favor. Ind. Admin. Code, Title 646, 5-8-4(a). Good cause will be established if it is established that a reasonable person under similar circumstances would have similarly left employment. Ind. Admin. Code, Title 646, To prepare for a voluntary-quit case, the employer s witnesses should consider in advance of the hearing the circumstances surrounding the former employee s separation from

34 employment. Evidence that is relevant to such a case may include the former employee s letter of resignation, relevant or voice mail messages, or other statements made by the former employee to the supervisor or other employees. If applicable, the witnesses can testify that the former employee never complained about any harassment or other concern, and as a result, the employer never had the opportunity to correct the situation before the employee quit. If the former employee did complain, the employer should be prepared to testify in detail regarding the nature of the complaint and how the employer responded (that the employer thoroughly investigated the complaint and took appropriate and effective action, and that the complained-of conduct ceased). If the former employee simply believes that he or she was treated unfairly (such as by being disciplined more harshly than others), the employer should be prepared to discuss in detail the former employee s deficiencies that led to discipline (supported by documentation of warnings or other discipline) and how other employees who were similarly deficient were similarly disciplined (including employees of the opposite gender or other races). From time to time, the employer may need a witness to testify at the hearing who is no longer employed by the company and thus not subject to the employer s control. The employer can simply reach out to the witness and ask if he or she is willing to testify during the hearing. In the event that an important witness refuses the party's request that he or she participate in the hearing, the party may request assistance from the administrative law judge. A request for a subpoena will be granted or denied at the administrative law judge's discretion, Ind. Code , so the employer should be sure to fully explain why the witness is important to its case and that the witness has refused the employer s request to participate in the hearing. A party may also request that a subpoena issue for the purpose of obtaining documents either from the

35 opposing party or a non-party. The hearing instructions generally advise parties to contact the administrative law judge immediately if they are in need of a subpoena. IV. Effective Participation in the UI Appeal Hearing During the appeal hearing, the administrative law judge will consider the matter de novo. This means that the judge will not be influenced by the claims deputy s initial benefits determination in deciding the outcome of the hearing. In fact, the judge will not even have the claims deputy s file. Rather, in making his/her determination, the judge will examine only the documents submitted by the parties that are admitted into evidence during the hearing and the hearing testimony. Generally, appeal hearings are scheduled to last one-half hour. If the hearing is not finished within a half-hour, the administrative law judge may either allow it to go longer, or adjourn the hearing and re-set it to continue on another date. To commence the hearing, the judge will telephone the parties, and, as soon as the judge has both sides on the line, he or she will ask each person to identify themselves and will then issue a brief statement explaining the hearing process. NOTE: If the appellee fails to appear, the administrative law judge will take the appellant's evidence and render a determination, most likely in favor of the appellant. If the appellant fails to appear, the judge will dismiss the appeal. Ind. Admin. Code, Title 646, (c). Parties who feel that their failure to appear was due to no fault of their own may submit a request to the judge that he or she reinstate the matter. Reinstatement may be appropriate, for example, where the party provided the judge a number to call for the hearing but the judge called the wrong number. It may also be warranted when circumstances prevented the party from receiving actual notice prior to the hearing. See Scott v Review Bd. of Indiana Dept. of Workforce Development, 725 N.E.2d 993 (Ind. Ct. App. 2000) (claimant at out-of-state funeral); Forni v. Review Bd. of Indiana Dept. of Workforce Development, 900 N.E.2d 71 (Ind. Ct. App. 2009), trans. denied 915 N.E.2d 988 (reinstatement required when claimant missed hearing notice and hearing while out of state). Requests for reinstatement must be made within seven days. Ind. Admin. Code,

36 Title 646, (e). If a party wins reinstatement but then fails to appear at the rescheduled hearing, a second request for reinstatement will be denied. Id. When the administrative law judge is ready to hear from the parties witnesses, he or she will ask each witness to swear or affirm that they will testify truthfully. As stated above, Indiana law does not assign either side the burden of proof, regardless if the employer terminated the employer or the employee voluntarily quit. Accordingly, the judge has the discretion to decide which side will present evidence first. No matter who goes first, the other side will have the opportunity to cross-examine any opposition witness. When one (or both) of the parties is represented by counsel, the judge may permit the lawyer(s) to conduct the examination similar to a real trial. However, the judge (who has a duty to ensure complete presentation of the claimant's claim when the claimant is pro se, see Jones v. Review Bd. of Indiana Dept. of Employment and Training Services, 583 N.E.2d 196 (Ind. Ct. App. 1991)) may prefer to conduct the examination of witnesses, and only allow counsel to cross-examine. In presenting exhibits during the hearing, the employer should attempt to admit them in conjunction with witness testimony that the exhibits are true and accurate copies of the company s regularly-maintained business records. Once testimony about an exhibit concludes, the party should make a request to the administrative law judge that the exhibit be admitted into evidence. In keeping with the informal nature of the proceeding, the judge often assists a party who forgets or does not understand the procedure by asking whether they would like the exhibit to be admitted into evidence. The party should respond affirmatively. The judge will then ask the other party whether he/she/it has any objection to the evidence sought to be admitted. A party could object if the exhibit appears to be an inaccurate or incomplete copy of the document or if there is some other basis for untrustworthiness. A party can also object that the document is

37 irrelevant or if it contains a statement that is hearsay. See Ind. Admin. Code, Title 646, Keep in mind, however, that admission and exclusion of evidence is generally within the sound discretion of the judge. See Shoup v. Review Bd. of Indiana Employment Sec. Div., 399 N.E.2d 771 (Ind. Ct. App. 1980). NOTE: Should testimony or evidence be presented during the hearing that a party "is not prepared to meet" and "by ordinary prudence could not be expected to have anticipated," such party possesses good cause for a continuance of the hearing, and such request shall be granted. Ind. Code Should a party wish to make a brief closing statement upon the conclusion of the presentation of the evidence, the judge will usually permit him/her to do so. Within two weeks after the hearing, the administrative law judge will issue a written opinion setting forth evidentiary findings and conclusions of law and that affirms, modifies, or reverses the determination of the claims deputy. The UI Appeals Division will mail a copy of the decision to the parties. Should either party wish to appeal, he/she/it will have fifteen days to do so. This time period is counted from the date the decision is mailed to the parties. If the judge's decision is not appealed within the applicable time period, it becomes final. Ind. Code (b). See Richards Restaurant v. Lukins, 667 N.E.2d 806 (1996) (failure to timely appeal results in dismissal of appeal as statute is jurisdictional in nature); Szymanski v. Review Bd. of Indiana Dept. of Workforce Development, 656 N.E.2d 290 (Ind. Ct. App. 1995) (Review Board has no jurisdiction to hear appeal not timely filed). V. Taking an Appeal from an Adverse Determination A. The Review Board The Review Board is a three-person panel appointed by Indiana's Governor that convenes in Indianapolis to review appeals from administrative law judge decisions. Interestingly, the

38 statute only requires that one of the three members of the Review Board be admitted to practice law in Indiana. Ind. Code (a). As stated above, a party who wishes to appeal the decision that the administrative law judge rendered regarding eligibility for unemployment compensation must file an appeal within fifteen days of the date the judge's decision was mailed to the parties. To appeal, the party must submit an appeal form or letter to the Review Board, and a copy to the other side, that states the desire to appeal and contains a specific statement explaining why the judge's decision is wrong. The other side may file a response within seven days of receipt of the appeal form/letter. To reach a decision, the Review Board usually examines the record that was created as a result of the administrative law judge's hearing. As a general rule, the appealing party may not present evidence to the Review Board that was not presented during the hearing before the administrative law judge. An appellant who wishes the Review Board to consider new evidence must first submit a request to the Review Board asking the Board to consider new evidence and explaining the reason(s) why the Board should allow the party to present the evidence. The request must be sent to the Review Board with the letter requesting appeal. See Davidson v. Review Bd. of Indiana Employment Sec. Div., 311 N.E.2d 472 (Ind. Ct. App. 1974). If the party shows good cause that the new evidence is relevant and explains why the new evidence was not previously presented to the administrative law judge, the Board may grant the appellant's request. See Whirlpool Corp. v. Review Bd. of Indiana Employment Sec. Div., 438 N.E.2d 775 (Ind. Ct. App. 1982) (decision whether to hear additional evidence rests in sounds discretion of Review Board); Smitty's Painting, Inc. v. Review Bd. of Dept. of Workforce Development, 908 N.E.2d 244 (Ind. Ct. App. 2009) (affirming Review Board's rejection of affidavit submitted by employer

39 who failed to appear at appeal hearing and then failed to request permission from Review Board to submit additional evidence). As stated above, the Review Board will typically convene to examine the record that was created during the administrative law judge's hearing. The Review Board need not provide notice of the time it will assemble. See Cano v. Review Bd. of Indiana Employment Sec. Div., 513 N.E.2d 670 (Ind. Ct. App. 1987). The Review Board may or may not allow the parties to submit written arguments or briefs. The Review Board may or may not schedule an oral argument. Ind. Admin. Code, Title 646, See Frederick v. Review Bd. of Indiana Employment Sec. Div., 448 N.E.2d 1230 (Ind. Ct. App. 1983) (hearing will be held at Review Board's discretion). The Review Board may occasionally conduct a hearing to take testimony of witnesses for purposes of assessing credibility. See Stanley v. Review Bd. of Dept. of Employment and Training Services, 528 N.E.2d 811 (Ind. Ct. App. 1988) (Review Board who makes credibility determination contrary to ALJ without conducting hearing violates due process). Once it concludes its examination and/or hearing, and provided that at least two of the Board members are in agreement, the Review Board will issue a decision that either affirms, modifies, or reverses the administrative law judge's decision. The Review Board also may decide to remand the proceeding to the administrative law judge to obtain additional evidence. Ind. Code (e); Ind. Admin. Code, Title 646, The Review Board has wide latitude to act independently on the evidence before it and need not defer to the decision of the administrative law judge. See Perlman/Rocque v. Review Bd. of Ind. Dept. of Workforce Development, 649 N.E.2d 701 (Ind. Ct. App. 1996). It also need not confine itself to the theories heard by the administrative law judge. See Trigg v. Review Bd

40 of Indiana Employment Sec. Div., 445 N.E.2d 1010 (Ind. Ct. App. 1983). Where the facts are not in dispute, the Review Board's sole duty is to apply the law to the undisputed facts. See Jones v. Review Bd. of Indiana Employment Sec. Div., 238 N.E.2d 291 (Ind. Ct. App. 1968). The Review Board must issue a written opinion with conclusions of law supported by specific findings of fact. Ind. Admin. Code, Title 646, See Frey v. Review Bd. of Indiana Employment Sec. Div., 446 N.E.2d 1341 (Ind. Ct. App.1983) (in deciding claimant ineligible for benefits, Review Board's findings of fact should exclude every possibility of recovery within issues raised). The decision will be mailed to the parties, who will have fifteen (15) days from the date the decision is mailed to file a notice of intention to appeal the decision to the Indiana Court of Appeals. If a notice of appeal is not filed within this time period, the Review Board s decision will become final. Ind. Code (a). B. Indiana Court of Appeals In order to appeal a Review Board decision to the Indiana Court of Appeals, the appellant must first file a Notice of Intent to File an Appeal with the Review Board within fifteen days of the date that the Review Board mailed its decision. As its title implies, this filing simply puts the Review Board on notice of an impending appeal so that it may begin to prepare the record to be submitted to the Court of Appeals. The appellant must also ask the Review Board to compile the record and prepare a transcript of all proceedings before the administrative law judge and the Review Board for submission to the Court of Appeals, the cost therefor to be borne by the appellant unless indigence is established. Ind. Code (b)-(d). Next, within thirty days after the Notice of Intent to File Appeal is filed, the appellant must file its appellate brief, the transcript of the record, and an assignment of errors with the Court of Appeals. Ind. Code (a)